Democracy Under Arrest

'Universal' human- rights law never seems to apply to the likes of Kim Jong Il.

By

John Bolton

Updated Dec. 15, 2009 10:01 p.m. ET

'Universal jurisdiction" sounds like a term plucked from obscure international law journals, but it has pernicious and profoundly antidemocratic consequences in the real world. A British arrest warrant, issued over the weekend in London for former Israeli foreign minister Tzipi Livni, shows precisely why.

The warrant charged Ms. Livni—the current leader of the Knesset opposition—with war crimes allegedly committed by Israeli forces during Operation Cast Lead in the Gaza Strip last winter. Ms. Livni and other Israeli leaders have always staunchly defended their operation against Hamas, and the arrest warrant was withdrawn Monday when it became clear Ms. Livni would not be in Britain as previously scheduled. But the fallout from this misguided warrant will linger long after it fades from the headlines.

Universal jurisdiction originated centuries ago to deal with hostes humani generis ("the enemies of all mankind") such as pirates or slavers, who were not under any state's control but legitimately concerned them all. It has grown explosively in recent years, as self-styled human-rights advocates have pushed to criminalize national actions that they find offensive.

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Today's version of universal jurisdiction masquerades as a legal concept, but is in fact a form of political morality. It empowers prosecutions in states with little or even no connection to alleged offenses such as war crimes and gross abuses of human rights. And in many countries, as in Britain, the ability of private citizens to trigger the criminal process only adds to the danger of politicized prosecutions.

When leaders of constitutional, representative governments are targets, there is simply no argument for applying universal jurisdiction. Ms. Livni and her colleagues won free and fair Israeli elections, and were in fact defeated in subsequent free and fair elections. Israel's laws have been adopted by democratically elected Knesset members and enforced by an independent judiciary. If crimes under Israeli law have been committed, they can be prosecuted by Israel's courts. Same goes for the United States.

Augusto Pinochet's 1999 arrest in Britain on a Spanish warrant for offenses committed while overthrowing Chile's Salvadore Allende first brought universal jurisdiction global prominence. But Pinochet's arrest was followed by Belgium's toying with the idea of arresting Donald Rumsfeld for having the temerity to visit NATO headquarters in Brussels. Now Ms. Livni and other Israeli officials involved in recent regional conflicts are subject to potential arrest and trial if they travel beyond Israel's borders.

It is no accident that arrest warrants never seem to be issued for the likes of Kim Jong Il or Mahmoud Ahmadinejad, since the real targets of universal jurisdiction these days are Western nations. Ultimately, what it targets is the very ideas of sovereign accountability and political independence. These goals largely motivated the 1998 Rome Statute that created the International Criminal Court, itself a step toward constraining states' abilities to police their own affairs, and an institution that the Obama administration yearns to join.

Transferring accountability for decisions from democratic politics to the criminal justice system understandably intimidates policy makers from making perfectly justifiable choices, such as defending against terrorist threats. Moreover, "command responsibility" has been transmogrified from liability for failing to stop known criminal activity, to liability when officials "should have known" their subordinates were committing crimes. This further ups the ante and explains why former foreign ministers like Ms. Livni or Henry Kissinger are at risk.

This deterrent impact is exactly what universal jurisdiction advocates seek—both to affect decisions at the highest national levels, and to discourage mid- and low-level officials from implementing disfavored policies. Some foreign critics hope to prosecute former President George W. Bush for enhanced interrogation techniques and the Guantanamo Bay detention facility. While they likely won't get to the former president, they'll be at least somewhat content prosecuting the attorneys who wrote the underlying legal justifications. Incredibly, the Obama administration has yet to definitively reject the possibility of allowing such prosecutions overseas.

Universal jurisdiction against officials of authoritarian regimes sounds appealing. But in these cases, the real goal should be replacing such regimes with representative governments that undertake sovereign accountability for prior transgressions.

Nonetheless, human-rights activists who view their morality as higher than that of elected governments are satisfied by nothing less than prosecution. That is precisely why contemporary universal jurisdiction is so profoundly antidemocratic.

Undoubtedly, leaders of constitutional democracies make mistakes about whom they do and do not prosecute. But to substitute the judgments of self-designated international Platonic Guardians for representative governments and independent judiciaries is perilous at best, and authoritarian at worst. It's the time to unambiguously reject universal jurisdiction before its infection spreads even further.

Mr. Bolton, a senior fellow at the American Enterprise Institute, is the author of "Surrender Is Not an Option: Defending America at the United Nations and Abroad" (Simon & Schuster, 2007).

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